GALLIPOLIS — A visiting judge has been assigned to the case against William “Billy” McBrayer after Gallia County Common Pleas Judge D. Dean Evans recused himself from the case last month.
W. Richard Walton, a retired judge of the Lawrence County Court of Common Pleas, was assigned to the case by the Supreme Court of Ohio, effective June 25.
In a journal entry filed with the Gallia County Clerk of Courts on July 19 and signed by Chief Justice Maureen O’Connor, Walton was assigned to preside over the 2011 case against McBrayer as well as a second, unrelated case.
Judge Evans recused himself from the McBrayer case shortly after a mistrial was declared on June 4, citing a conflict that arose out of an unrelated case.
McBrayer, 30, Gallipolis, was charged after he allegedly knowingly caused physical harm to a child on May 25, 2011, and allegedly administered corporal punishment or other physical disciplinary measures, or physically restrained the child in a manner that was excessive and created substantial risk of serious physical harm.
According to the indictment, the victim’s date of birth is January 21, 2009.
McBrayer, who is facing two counts of felonious assault and two counts of child endangerment, came before the court on June 4 for a scheduled jury trial and, according to an entry filed with the clerk of courts on June 7, after the jury was impaneled and the trial commenced, the court declared a mistrial upon a motion by defense counsel, Charles Knight.
The objection to the motion by special prosecutors Emily Pelfrey and Marianne Hemmeter of the Ohio Attorney General’s Office was duly noted.
Due to the pending nature of the case, Judge Evans refused to comment on the declaration of the mistrial, but did report that it involved an “evidentiary matter.”
Additionally, according to Evans, his recusal was not based upon the mistrial and was not related in any way to the case against McBrayer.
The case has been rescheduled for a jury trial on Wednesday, September 5.
Earlier this year, the court imposed sanctions against the special prosecutors in this case, following a motion filed by the defense seeking the removal of the special prosecutors.
The defense’s motion, filed on January 11 by McBrayer’s counsel just prior to a jury trial, alleged misconduct on the part of the special prosecutors due to the alleged purposeful concealment of relevant information that would aid in the prosecution of this case, the alleged failure to provide an appropriate witness list, the filing of “misleading” subpoenas and the alleged concealment of witnesses statements.
The court subsequently ordered that the state as well as the defense submit briefs arguing their position in regard to the motion, and, in a journal entry filed on February 1, the court imposed sanctions against the prosecutors and continued the trial in this case to April 9.
The court ordered that the prosecution file a summary of its response to discovery (a summary of the information provided to the defense in this case), a copy of the bill of particulars (a document giving detailed information concerning the charges against the defendant), a witness list, any written expert witnesses’ reports, as well as the submission of their complete files for inspection to the defense counsel in this case.
A motion to continue the jury trial in this case was later filed by the state in March and the court granted the motion, continuing the trial in this case to 9 a.m. on June 4 in the common pleas courtroom.
On the day of the trial, a motion was filed with the clerk of courts at 7:59 a.m. and signed by defense counsel Charles Knight. The “motion in limine” moves the court to order the prosecution “to refrain from comment upon certain out of court hearsay statements allegedly made by a 2 year old incompetent witness to one or more individuals contained in the State of Ohio’s witness list until the Court has the opportunity at trial to rule on the admissibility of said alleged statements.”
The attached memorandum states that the “statements” — or possible “excited utterances” that can be utilized as evidence at trial for persons not qualified to be witnesses — were made by the two-year-old victim in the days following the incident in question and are inadmissible at trial, according to the memorandum, unless the state can prove that the statements were unreflected and spontaneous and a “sincere expression of her actual impression and belief.”
The memorandum further states that consideration should be given as to the lapse of time between the incident and the statements given by the victim, the nature of the statements and the influence of “intervening events.”
The document signed by Knight further states, “While it is not required that the statements be exactly simultaneous with the primary fact in controversy, the statements must be spontaneous or an impulsive declaration and not the narration of a past transaction.”